The Path of the Law

1 The path of the LawOliver Wendell Holmes, Harvard Law Review 457 (1897)WHEN we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in orderto appear before judges, or to advise people in such a way as tokeep them out of court. The reason why it is a profession, why people willpay lawyers to argue for them or to advise them, is that in societies likeours the command of the public force is intrusted to the judges in certaincases, and the whole power of the state will be put forth, if necessary, tocarry out their judgments and decrees.

2 People want to know under whatcircumstances and how far they will run the risk of coming against whatis so much stronger than themselves, and hence it becomes a business tofind out when this danger is to be feared. The object of our study, then, isprediction, the prediction of the incidence of the public force through theinstrumentality of the means of the study are a body of reports, of treatises, and of statutes,in this country and in England, extending back for six hundred years, andnow increasing annually by hundreds. In these sibylline leaves are gath-ered the scattered prophecies of the past upon the cases in which the axewill fall.

3 These are what properly have been called the oracles of the the most important and pretty nearly the whole meaning of every neweffort of legal thought is to make these prophecies more precise, and togeneralize them into a thoroughly connected system. The process is one,from a lawyer s statement of a case, eliminating as it does all the dramaticelements with which his client s story has clothed it, and retaining onlythe facts of legal import, up to the final analyses and abstract universals oftheoretic jurisprudence. The reason why a lawyer does not mention thathis client wore a white hat when he made a contract, while Mrs.

4 Quicklywould be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same waywhatever his client had upon his head. It is to make the prophecies easierto be remembered and to be understood that the teachings of the decisions1 path of the Law2of the past are put into general propositions and gathered into textbooks,or that statutes are passed in a general form. The primary rights and du-ties with which jurisprudence busies itself again are nothing but prophe-cies. One of the many evil effects of the confusion between legal and moralideas, about which I shall have something to say in a moment, is that the-ory is apt to get the cart before the horse, and consider the right or the dutyas something existing apart from and independent of the consequences ofits breach, to which certain sanctions are added afterward.

5 But, as I shalltry to show, a legal duty so called is nothing but a prediction that if a mandoes or omits certain things he will be made to suffer in this or that way byjudgment of the court; and so of a legal number of our predictions when generalized and reduced to a sys-tem is not unmanageably large. They present themselves as a finite body ofdogma which may be mastered within a reasonable time. It is a great mis-take to be frightened by the ever-increasing number of reports. The reportsof a given jurisdiction in the course of a generation take up pretty muchthe whole body of the law, and restate it from the present point of view.

6 Wecould reconstruct the corpus from them if all that went before were use of the earlier reports is mainly historical, a use about which I shallhave something to say before I have wish, if I can, to lay down some first principles for the study of thisbody of dogma or systematized prediction which we call the law, for menwho want to use it as the instrument of their business to enable them toprophesy in their turn, and, as bearing upon the study, I wish to point outan ideal which as yet our law has not first thing for a businesslike understanding of the matter is to un-derstand its limits, and therefore I think it desirable at once to point outand dispel a confusion between morality and law, which sometimes risesto the height of conscious theory, and more often and indeed constantly ismaking trouble in detail without reaching the point of consciousness.

7 Youcan see very plainly that a bad man has as much reason as a good one forwishing to avoid an encounter with the public force, and therefore you cansee the practical importance of the distinction between morality and law. Aman who cares nothing for an ethical rule which is believed and practisedby his neighbors is likely nevertheless to care a good deal to avoid beingmade to pay money, and will want to keep out of jail if he take it for granted that no hearer of mine will misinterpret what I haveto say as the language of cynicism. The law is the witness and external de-posit of our moral life.

8 Its history is the history of the moral developmentof the race. The practice of it, in spite of popular jests, tends to make goodPath of the Law3citizens and good men. When I emphasize the difference between law andmorals I do so with reference to a single end, that of learning and under-standing the law. For that purpose you must definitely master its specificmarks, and it is for that that I ask you for the moment to imagine yourselvesindifferent to other and greater do not say that there is not a wider point of view from which the dis-tinction between law and morals becomes of secondary or no importance,as all mathematical distinctions vanish in presence of the infinite.

9 But I dosay that that distinction is of the first importance for the object which we arehere to consider a right study and mastery of the law as a business withwell understood limits, a body of dogma enclosed within definite lines. Ihave just shown the practical reason for saying so. If you want to know thelaw and nothing else, you must look at it as a bad man, who cares only forthe material consequences which such knowledge enables him to predict,not as a good one, who finds his reasons for conduct, whether inside thelaw or outside of it, in the vaguer sanctions of conscience.

10 The theoreticalimportance of the distinction is no less, if you would reason on your subjectaright. The law is full of phraseology drawn from morals, and by the mereforce of language continually invites us to pass from one domain to theother without perceiving it, as we are sure to do unless we have the bound-ary constantly before our minds. The law talks about rights, and duties,and malice, and intent, and negligence, and so forth, and nothing is easier,or, I may say, more common in legal reasoning, than to take these wordsin their moral sense, at some state of the argument, and so to drop into fal-lacy.